Sturgeon to resign as FM

[ProfessorDavey]

And is just general not specific guidance.

The point at which contempt kicks in will be specific - I am genuinely unclear (as I suspect are you) as we seem to have differences of opinion from the learned legal profession.

I do know that there was a move to change the law some while ago (driven by a particular case, can't quite remember which) on the basis that preventing reporting between arrest and potential charge was unhelpful. Memory suggests this was a case where releasing the name before charge might allow other victims to come forward.

I will see if I can dig out anything on this.

[Nearly Sane]

I note you've ignored my point about what could be said that would never come close to the threshold for contempt of court, specifically ‘a substantial risk that the court of justice in the proceedings concerned will be seriously impeded or prejudiced’.

Politicians regularly hide behind this to avoid having to answer any awkward questions regardless of whether giving the answer would pose ‘a substantial risk that the court of justice in the proceedings concerned will be seriously impeded or prejudiced’.

No, I'd covered that in pointing out that any advice will be to avoid any implication as it's open to interpretation. 'Oh no, FM  I don"t think there would be any problem making a statement like that. There's this bloke on a messageboard, and he thinks you would be fine.'

[ProfessorDavey]

No, I'd covered that in pointing out that any advice will be to avoid any implication as it's open to interpretation. 'Oh no, FM  I don"t think there would be any problem making a statement like that. There's this bloke on a messageboard, and he thinks you would be fine.'

Whether contempt starts at arrest, charge or any other point won't be open to interpretation - it will undoubtedly be specified precisely in law.

[Nearly Sane]

The point at which contempt kicks in will be specific - I am genuinely unclear (as I suspect are you) as we seem to have differences of opinion from the learned legal profession.

I do know that there was a move to change the law some while ago (driven by a particular case, can't quite remember which) on the basis that preventing reporting between arrest and potential charge was unhelpful. Memory suggests this was a case where releasing the name before charge might allow other victims to come forward.

I will see if I can dig out anything on this.

That's why I was saying this a specific comment on this case by the Dean of the Faculty of Advocates.  I've asked Roddy Dunlop for his opinion of the webpage.

[Nearly Sane]

Whether contempt starts at arrest, charge or any other point won't be open to interpretation - it will undoubtedly be specified precisely in law.

You seem confused, that post was in reply to you asking me about whether the comment would amount to contempt.

[ProfessorDavey]

That's why I was saying this a specific comment on this case by the Dean of the Faculty of Advocates.  I've asked Roddy Dunlop for his opinion of the webpage.

Good - well let's hope we can get to the bottom of this one, as neither you nor I are specialists, yet I'd imagine both Roddy Dunlop and the firm of Livingstone Brown are, and for reasons I don't understand they don't seem to agree with each other.

[ProfessorDavey]

You seem confused, that post was in reply to you asking me about whether the comment would amount to contempt.

OK, understood.

Surely you'd agree that one of the most frustrating responses from a politician is when the decline to answer a question related to something that is clearly only (at best) tangentially related to some legal action, on the basis that they 'cannot comment'. This has nothing to do with potential legal ramifications and everything to do with obfuscation and smoke screen.

[Nearly Sane]

Good - well let's hope we can get to the bottom of this one, as neither you nor I are specialists, yet I'd imagine both Roddy Dunlop and the firm of Livingstone Brown are, and for reasons I don't understand they don't seem to agree with each other.

Agreed, though I will point out that if there is this type of possible confusion a good lawyer, even if not a specialist, would give the advice to say nothing on this from now on that could be interpreted in any way as contempt. It is not a game of chicken.

[Nearly Sane]

OK, understood.

Surely you'd agree that one of the most frustrating responses from a politician is when the decline to answer a question related to something that is clearly only (at best) tangentially related to some legal action, on the basis that they 'cannot comment'. This has nothing to do with potential legal ramifications and everything to do with obfuscation and smoke screen.

It can be abused undoubtedly but I don't think that any comment good or bad on Murrell can be seen as tangential.

[Nearly Sane]

On the subject of avoiding comment this is the sole tweet from Ian Blackford, humble crofter, today

[ProfessorDavey]

It can be abused undoubtedly but I don't think that any comment good or bad on Murrell can be seen as tangential.

So here is an example - on the very matter:

https://www.dailyrecord.co.uk/news/politics/nicola-sturgeon-refuses-discuss-ongoing-29225122

So Sturgeon refused to answer a direct question on the basis that "I’m not going to discuss an on-going police investigation" and then gets an SNP spokesperson to answer the bit that she wants (i.e. she hadn't spoken to the Police).

Point is that there is no way that answering whether she had or had not spoken to the Police, nor whether or not she expected to be interviewed, by Police Scotland isn't going to come close to meeting the threshold on contempt of court. The reason being that by the time anything is actually being decided whether or not she had spoken to the police would simply be a matter of fact.

Classic using 'cannot comment' as a mechanism to 'manage comment'.

[ProfessorDavey]

It can be abused undoubtedly but I don't think that any comment good or bad on Murrell can be seen as tangential.

What even something as anodyne as 'yes, I always had a good working relationship with Murrell'.

People make these kind of comments all the time - you know the classic 'well he was always friendly and polite' or 'he was always a bit of a loner - kept himself to himself' as a neighbour is asked about a person who have just been charged with murder on BBC news.

[Nearly Sane]

So here is an example - on the very matter:

https://www.dailyrecord.co.uk/news/politics/nicola-sturgeon-refuses-discuss-ongoing-29225122

So Sturgeon refused to answer a direct question on the basis that "I’m not going to discuss an on-going police investigation" and then gets an SNP spokesperson to answer the bit that she wants (i.e. she hadn't spoken to the Police).

Point is that there is no way that answering whether she had or had not spoken to the Police, nor whether or not she expected to be interviewed, by Police Scotland isn't going to come close to meeting the threshold on contempt of court. The reason being that by the time anything is actually being decided whether or not she had spoken to the police would simply be a matter of fact.

Classic using 'cannot comment' as a mechanism to 'manage comment'.

Agree. Which is why I wrote 'It can be abused undoubtedly'

[Nearly Sane]

What even something as anodyne as 'yes, I always had a good working relationship with Murrell'.

People make these kind of comments all the time - you know the classic 'well he was always friendly and polite' or 'he was always a bit of a loner - kept himself to himself' as a neighbour is asked about a person who have just been charged with murder on BBC news.

I think you might get away with I liked his Paso Doble, actually scrub that. The case is about Murrell at work.

[ProfessorDavey]

I think you might get away with I liked his Paso Doble, actually scrub that. The case is about Murrell at work.

Are you really claiming that saying 'yes, I always had a good working relationship with Murrell', would actually come close to a threshold of "a substantial risk that the court of justice in the proceedings concerned will be seriously impeded or prejudiced"? I mean really

[Nearly Sane]

Are you really claiming that saying 'yes, I always had a good working relationship with Murrell', would actually come close to a threshold of "a substantial risk that the court of justice in the proceedings concerned will be seriously impeded or prejudiced"? I mean really

I'm saying I would advise the FM of Scotland not to make any comments that could on anyway be interpreted as approval or disapproval because the aim is not to avoid actually losing any contempt of court case but not to play chicken with the law.

[Nearly Sane]

What can you say?

[Gordon]

Perhaps they are searching for the recently deceased corpse of Scottish Independence.

[Nearly Sane]

Murrell released pending further investigation

[ProfessorDavey]

Notable how much more the Scottish Tory and Labour leaders, and to an even greater extent, the papers this morning feel they could comfortably say about the situation, compared to Yousaf.

No doubt the other party leaders and the papers also have access to legal opinion to ensure their comments don't fall foul of the contempt of court threshold.

Almost as if Yousaf's 'can't comment on an active investigation' is political based on not wanting to make any comment, rather than not being legally able to. The papers are raising points about how much Sturgeon knew, whether this was the reason she resigned and whether the timing of the police action was delayed so it wasn't during the actual SNP election. They clearly feel raising these points is fine legally.

If and when Yousaf gets asked the same questions do you think he will give his opinion (which would clearly be fine legally) or make no comment on the (spurious) basis that he cannot comment during an active investigation.

[Nearly Sane]

Interesting from Iain McWhirter

https://iainmacwhirter.substack.com/p/scotland-is-in-a-very-dark-place


There was a split in the country, or at least, that part that is interested in politics, between the popcorn eaters and mothing to see groups, but also those of us who are saddened by it. One friend yesterday put up a post on twitter, halfway through the morning, to announce that they had just made a reasonable size donation to the SNP because they trusted the party. Predictably, they were replied to with many offers of bridges.

I think in some ways this relates to Prof D's hypothesis that there has been a change in political culture, and I would suggest that it combines with my overuse of the popcorn trope. Politics has become much more of a spectacle. The images of the police outside the house of Murrell and Sturgeon yesterday instantly created memes. And even those of us who might despair about what is going on will have found many funny.

24/7 news and social media are the barkers for the circus, and part of me will feel cheated if there are no carnival arrests today. After all, it's a long weekend coming up so that will mean just speculation but little show.

[Nearly Sane]

This is farcical

https://twitter.com/danwnews/status/1643890843433025538?t=0yG3cClULw5TMbNS6_IFEg&s=19

[jeremyp]

Or whether Murrell pulls Sturgeon into the path of the bus.

Arguably he already has, if you define the bus as "end of political career".

[jeremyp]

Trade you this one:

https://www.livbrown.co.uk/criminal-defence/connected-litigation/contempt-of-court

"Where court proceedings are active (in criminal cases, from the point of charge onwards) any publication that creates ‘a substantial risk that the court of justice in the proceedings concerned will be seriously impeded or prejudiced’ will be regarded as a contempt of court, on a strict liability basis."

This is in the context of Scottish law from Contempt of Court lawyers, so perhaps there is some confusion.

Nonetheless - the threshold is ‘a substantial risk that the court of justice in the proceedings concerned will be seriously impeded or prejudiced’ - there is plenty that a politician could say, legally, that would never reach that threshold. That they may not do so has as much to do with the politics of the matter (whether avoiding awkward questions or avoiding seeming to support a colleague) as the law.

Are we not technically still in the investigation stage. I'm not aware that anybody is on trial yet.

Edit: Murrell was released without charge, so we are not even at the beginning of the court stage yet.

That said, it would be very wise of the current FM not to say anything about this. Even "I have full confidence in Peter Murrell" might be unwise because a) it might be seen as trying to influence the investigation and b) Murrell might be guilty and then Humza Yousaf would look a bit stupid. 

[jeremyp]

This is farcical

https://twitter.com/danwnews/status/1643890843433025538?t=0yG3cClULw5TMbNS6_IFEg&s=19

In what way?